Endangered Species Act Cara Cowan Watts Graduate Student Biosystems Engineering

Source of Class Materials Presentations and Handouts adapted from The U.S. EPA’s Water Quality Standards Academy November 27-December 1, 2006 Washington, DC

Endangered Species Act (ESA) Mission To conserve listed species and their habitat Imposes overarching substantive obligation on Federal agencies to ensure their actions do not jeopardize listed species All actions authorized, funded or carried out, in whole or in part, by a Federal agency which may affect listed species or designated critical habitat http://www.ucsusa.org/gulf/pixgulf/state_al_bio02.jpg

ESA: Interagency Cooperation 7(a)(1): Federal agencies shall use their authorities to conserve species 7(a)(2): Federal agencies shall "consult" to ensure actions do not jeopardize species Action includes activities authorized, funded or carried out by a Federal agency

ESA: “Take” Unlawful to “take” a listed species “Take” includes harass, harm, pursue, hunt, kill, capture or collect Exception: Service may permit take if take is incidental to and not the purpose of an otherwise legal activity http://biokecklab.uno.edu/research/images/Sevosa%20met.jpg

ESA Application to WQS 85% of listed animal species use wetlands and aquatic habitats Federal Action "May Affect“ Biological Evaluation Adversely Affected Informal Consultation Formal Consultation Biological Opinion Jeopardy - RPAs and RPMs http://www.ens-newswire.com/ens/pics15/manateecowcalf.jpg

Biological Evaluations If action “may effect” species or critical habitat, agency is to conduct a biological evaluation Evaluate the potential effects of the action on listed species and critical habitat Determine if listed species or critical habitat are likely to be adversely affected http://www.ecology.org/ecophoto/reptiles_files/Thumbnails/PrimaryCatalog-6343.jpg

‘Adversely Affected’ Agency is to determine if any species or critical habitat are likely to be adversely affected Not ‘likely to be adversely affected’ if effect is beneficial, discountable, or insignificant http://teacher.scholastic.com/scholasticnews/indepth/endangered_species/animals/popups/images/salmon.jpg

Informal Consultation Determine if formal consultation is necessary All discussions and correspondence between agency and Service prior to formal consultation If the agencies determine “not likely to adversely affect,” then consultation concludes http://www.posy1.anl.gov/Gallery/galleryImages/consultation.jpg

Formal Consultation Required with action agency determination of “likely to adversely affect”, although action agency may request formal consultation at any time Action agency may proceed with its action prior to formal consultation, providing its action is consistent with ESA Section 7(d) Concludes with Service’s biological opinion (or mutual “not likely to adversely affect” finding) http://www.usinternetconsulting.com/images/internet_consultation.jpg

Biological Opinion Summary of information on which opinion is based Discussion of the effects of the action on listed species and critical habitat Indicates Service’s opinion on whether action is likely to jeopardize species or adversely modify critical habitat Jeopardy - Accompanied by Reasonable and Prudent Alternatives

Reasonable and Prudent Alternatives Recommended alternative actions MUST BE Consistent with the scope of the Federal agency’s legal authority Consistent with the intent of the action Economically & technologically feasible Avoid the likelihood of jeopardy

What is Jeopardy? Defined IF jeopardy Action…expected…to diminish a species’ numbers, reproduction, or distribution so that the likelihood of survival and recovery in the wild is appreciably reduced IF jeopardy Federal agency is to notify the Service of final decision on the action A jeopardy opinion is non-binding HOWEVER Federal agency is at risk in not fulfilling the requirements of the ESA http://www.reimer-media.de/images/tv_show/jeopardy_logo_01.jpg

‘No Jeopardy’ Finding Amount of incidental take that can occur Reasonable and Prudent Measures (RPMs) necessary to minimize the incidental take Terms and conditions that Federal agencies are to use to implement the RPMs

Formal Consultation: Expectations Concludes 90 days after initiation Unless by mutual agreement to extend Service is to issue its biological opinion within 45 days of conclusion Federal agency shall provide the Service with the best scientific and commercial data available OR which can be obtained for an adequate review of effects of action

Consultation Process ACTION AUTHORIZED, FUNDED, OR CARRIED OUT BY FEDERAL AGENCY? No Yes End ACTION MAY AFFECT LISTED SPECIES? Action “affects” species if the effect is either detrimental or beneficial No Yes INFORMAL CONSULTATION Consists of communications between Action agency and Service. Action agency provides data and perform a biological assessment (Action agency may go directly to formal consultation)

Consultation Process…cont’d AGENCY FINDS ACTION NOT LIKELY TO “ADVERSELY AFFECT” SPECIES AND SERVICE CONCURS IN WRITING Yes No End FORMAL CONSULTATION 90 days unless extended by agreement of agencies. Service can request agency to provide additional data, which the agency must obtain, if practicable, within consultation period.

Consultation Process…cont’d SERVICE RENDERS “BIOLOGICAL OPINIONS” WITHIN 45 DAYS AFTER CONCLUSION OF FORMAL CONSULTATION AS TO WHETHER ACTION IS LIKELY TO JEOPARDIZE THE CONTINUED EXISTENCE OF ENDANGERED SPECIES IF SERVICE FINDS JEOPARDY, INCLUDES REASONABLE AND PRUDENT ALTERNATIVES TO AVOID JEOPARDY. IF SERVICE FINDS NON-JEOPARDY, IT MAY INCLUDE AN INCIDENTAL TAKE STATEMENT WHICH INCLUDES REASONABLE AND PRUDENT MEASURES AGENCY DECISIONS ON HOW TO PROCEED. Service opinion not binding but Action Agency must develop an adequate record to support a finding of No Jeopardy

Questions?